Eligibility for medical care despite immigration status

Social worker, service users and an asylum support manager discuss a case involving a family with no recourse to public funds who have complex medical needs

Case study

Charles* and Katherine* are HIV positive. Charles has developed a worrying lump, which is being investigated, and there is talk of him starting anti-retroviral medication. Katherine is five months’ pregnant and has started medication to prevent transmission to the baby.

Charles and Katherine have had depressive episodes and have symptoms including fatigue, headaches, dizzy spells and anxiety.

Angela*, their 14-month-old daughter, is likely to be HIV negative but this cannot be confirmed for a further four months. All three are subject to immigration restrictions and have no recourse to public funds, though social services provide subsistence and accommodation under the National Assistance Act 1948 (NAA).

Case law has changed as a result of the 2008 Slough judgement, which said people receiving help under section 21 of the NAA must have needs other than accommodation. This has led the council to re-assess all no-recourse clients.

The needs of this family are considered not to meet eligibility thresholds for adults’ and children’s services. Due to the immigration application being on the basis of length of stay in the UK, the family cannot apply for UK Border Agency support, unless they fall under some very strict categories.

The social worker is worried that if support were withdrawn there would be a decline in the couple’s physical and mental health; less adherence from them to medication regimes or monitoring programmes with clinicians; and potential breaches of the Human Rights Act 1998 and children’s legislation.

Although the Slough judgement did place restrictions on support, it also accepted that people with a demonstrable need for care and attention should remain eligible for support.

Given this family’s complex mental and physical health care needs, there is clearly a case to be made for continued eligibility under section 21.

It is unclear whether the social worker has followed the good practice guidelines set in place by the No Recourse to Public Funds Network. For example, did the professional request medical reports from consultants and other expert practitioners involved with the family’s care? These reports would help to form a full picture of the likely impact of the withdrawal of accommodation and subsistence support on this family’s health and well-being.

Similarly, the suggestion of “eligibility thresholds” for children’s services gives cause for concern, because it suggests that Angela is exempt from the local authority’s duty, under the Children Act 2004, to safeguard and promote the welfare of children, with particular regard to the question of children’s social and economic well-being.

As long as social workers fear the implications of schedule 3 of the Nationality, Immigration and Asylum Act 2002 – which exempts certain categories of people subject to immigration control from council support unless a breach of human rights can be demonstrated – the claim that every child matters will continue to ring hollow.

The expert view

Joe Murray, policy officer, National Aids Trust

The first thing the social worker should do is seek immediate legal advice.

The Slough judgement stated that asylum seekers must demonstrate a need for “care and attention” other than to meet medical or housing needs.

But, because the House of Lords did not define in detail “care and attention”, the couple may be able to challenge the ­decision.

It could be argued that care needs include help adhering to medication, counselling, help with domestic chores, mental health support or personal care.

It may be something they cannot do or have trouble doing for themselves and with which it is reasonable for someone else to help them. In this case, previous depressive episodes may be a case for mental health support. An assessment should not only look at what is currently provided, but also what additional care and attention they, in any event, need.

It is important to think widely and ensure that any information which may support a case to retain support is provided to the council.

In particular, it is essential that the local authority conducts a fresh and comprehensive assessment of the individuals’ needs rather than simply determining the future of section 21 support by way of a “paper exercise”.

If section 21 assistance is withdrawn, support from the UKBA should still be pursued.

The service user view

Tendai* and Ruvarashe*, a Zimbabwean ­refugee couple with two children

Having experienced destitution and refusal here in the UK, we know exactly how Charles and Katherine must be feeling.

We approached our local authority for help and were refused support under the Children Act. We were advised instead to approach the Home Office for help with accommodation and support – a request that was also refused until an advocacy project began to fight our corner.

We were sent from pillar to post, unaware of our basic legal rights and forced to beg for help.

We were lucky because we were able to access independent advocacy, and do have a network of family and friends who could feed us and give us temporary shelter, letting us sleep on their floors or in spare rooms.

Charles and Katherine may not be so ­fortunate and there is a real risk that the family may end up on the streets homeless – just as we repeatedly feared would happen to us.

We sincerely hope that the social worker in this case does remain mindful of Charles and Katherine’s essential human rights, rather than choose to turn this desperate family on to the streets.